In a Will, What Does the Wording ‘By Right of Representation’ Mean?

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“My widowed father’s will from ten years ago includes this language: “If my spouse fails to survive me, I direct that the residue of my estate be divided into equal shares. There shall be one share for each child of mine who survives me and one share for the issue, by right of  representation, of each child of mine who fails to survive me.” I’m familiar with the terms per stirpes and per capita, but not with “by right of representation” in a will. Is this the same as per stirpes?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Generally speaking, yes, “right of representation” means the same thing as “per stirpes.” To illustrate how this works: if Father had three children, Adam, Beth, and Charles, and all the children are alive when Father dies, then each child gets 1/3 of Father’s estate.

If, however, Charles died before Father, but Charles had two children himself (Greg and Gina), then Charles’s third is split evenly amongst his children. Thus, Adam and Beth each get 1/3, and Greg and Gina each get 1/6.

Things can get a little more complicated, particularly if an entire generation predeceases the testator (in which case you would do well to consult your local statutes, if not an attorney). However, in most situations the above is enough to get you to the right distribution.

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Author: House Attorney

A house attorney has answered this question.